Citation Nr: 9826923
Decision Date: 09/08/98 Archive Date: 09/17/98
DOCKET NO. 95-21 614 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an increased (compensable) rating for tension
headaches.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
INTRODUCTION
The veteran had active service from May 1988 to September
1993.
This appeal initially came to the Board of Veterans' Appeals
(the Board) from rating actions taken by the Department of
Veterans Affairs (VA) Regional Office (RO) in Oakland.
The Board, in a decision in April 1998, denied entitlement to
increased evaluations for service-connected chronic low back
pain, right knee retropatellar pain syndrome, left knee
retropatellar pain syndrome, and gastroesophageal reflux.
In the Board's April 1998 decision, it was also noted the RO
had granted service connection for tension headaches on
September 29, 1997; and that the RO had assigned a
noncompensable rating for tension headaches on that same
date.
The veteran may have been informed of that decision, perhaps
by being sent a copy of the rating action that so effectuated
it dated in September 1997. A copy of any such letter or
other indication in that regard is not in the file, although
there is a handwritten notation on a copy of the rating
action that the veteran was to be informed of some of the
pertinent regulations then in effect.
At any rate, a further letter went to the veteran from the
RO, dated November 12, 1997, referring to his having
previously been informed that pursuant to Holland v. Brown, 9
Vet. App. 324 (1996), the issue with regard to an increased
(compensable) rating for tension headaches would remain in
appellate status without further action on his part.
The November 1997 letter further stated that Holland had
since been reversed by a higher court, and accordingly, if
the veteran wished to pursue the increased rating question,
he should submit a Notice of Disagreement (NOD).
An informal hearing presentation by the veteran's
representative, dated in March 1998, addressed the increased
rating issue as well as the others then pending.
In the Board's April 1998 decision, the Board held that under
then applicable guidelines, the March 1998 informal
presentation should be considered a NOD.
Accordingly, the Board remanded the case for a Statement of
the Case (SOC) on that issue, believing that under the then
prevailing regulations and judicial mandates, it had
jurisdiction thereon.
In May 1998, the RO issued an SOC on the issue relating to an
increased (compensable) rating for tension headaches.
The cover letter associated with the SOC was dated May 27,
1998. The veteran was informed that the SOC was being issued
in response to his NOD to that issue; and that to complete an
appeal on that issue, he must file a formal appeal. A VA
Form 9 was enclosed to be returned within 60 days. No VA
Form 9 was received within 60 days, nor was there anything
received from the veteran in the interim that might be
construed to constitute anything acceptable in lieu thereof.
A VA Form 646, nonspecific as to further arguments and not
reflecting additional comment, etc., from the veteran, was
prepared by the veteran's representative on July 14, 1998,
and the case was returned to the Board.
The written presentation by the veteran's representative on
appeal, dated in August 1998, relates only to the other four
issues which were before the Board when the April 1998
decision was issued; and while collaterally referring to
tension headaches in the body of the discussion, it does not
include the tension headaches issue in any form on the title
page as one also to be addressed.
FINDINGS OF FACT
1. A rating action in September 1997 granted service
connection for tension headaches and assigned a
noncompensable rating.
2. The veteran was notified of the September 1997 rating
action either on September 29, 1997, the date of the rating
action, at the earliest, or November 12, 1997 at the latest.
2. A NOD was issued on that decision in March 1998.
3. An SOC was issued on the decision in May 1998.
4. A Substantive Appeal has not been entered.
CONCLUSION OF LAW
The Board is without jurisdiction to decide the present claim
because a valid and timely appeal was not filed. 38 U.S.C.A.
§§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.202,
2.301, 20.302 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With the reversal of Holland v. Gober, 124 F.3d 88 (Fed.Cir.
1997), the decision in Grantham v. Brown, 114 F.3d 1156, 1159
(Fed.Cir. 1997), and pursuant to Godfrey v. Brown, 7 Vet.
App. 398 (1995), the Board remanded the case for issuance of
a SOC on the herein concerned issue. In essence, the Holland
and Grantham cases had held that a NOD applies only to the
element of the claim currently being decided, and necessarily
cannot apply to "the logically down-stream element of
compensation level".
A SOC was issued by the RO in May 1998, as stated above; and
the veteran was notified in a cover letter associated with
transmittal thereof, that in order to pursue that issue, a
formal appeal was required within 60 days or within the
remainder, if any, of the one-year period from the date of
the letter notifying him of the action that he had appealed.
He was informed as to how this could be accomplished,
including on a VA Form 9, which was enclosed.
An application for review on appeal shall not be entertained
unless it is in conformity with 38 U.S.C.A. § 7108 (West
1991).
The Board may only exercise jurisdiction over an issue after
an appellant has filed both a timely notice of disagreement
to a rating decision denying the benefit sought, and a timely
substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v.
Brown, 5 Vet. App. 554 (1993).
The governing regulations provide that, an appeal consists of
a timely filed NOD in writing and, after a SOC has been
furnished, a timely filed substantive appeal. 38 C.F.R. §
20.200 (1997).
The SOC provided the appellant the information he needed to
perfect his appeal, as required by law and regulation. 38
U.S.C.A. § 7105(d)(1)(A), (B), (C) (West 1991); 38 C.F.R. §
19.29 (1997).
The RO provided the pertinent SOC and the VA Form 9 with
instructions to both the appellant and his representative, as
required. 38 C.F.R. § 19.31 (1997).
A substantive appeal consists of a properly completed VA Form
9, “Appeal to the Board of Veterans’ Appeals,” or
correspondence containing the necessary information. If the
SOC...addressed several issues, the Substantive Appeal must
either indicate that the appeal is being perfected as to all
of these issues or must specifically identify the issues
appealed. The Substantive Appeal should set out specific
allegations of error of fact or law made by the agency of
original jurisdiction in reaching the determination, or
determinations, being appealed. To the extent feasible, the
argument should be related to specific items in the ...SOC
and the benefits sought on appeal must be clearly identified.
38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.202
(1997).
The Board may dismiss any appeal which fails to allege
specific error of fact or law in the determination being
appealed. 38 U.S.C.A. § 7105(d)(5) (West 1991).
In order to perfect an appeal, the appellant must file a NOD
with a determination by the agency of original jurisdiction
within one year from the date that the agency mails notice of
its determination to him or her. Otherwise, that
determination will become final. The date of mailing the
letter of NOD will be presumed to be the same as the date of
that letter for purposes of determining whether an appeal has
been timely filed. 38 C.F.R. § 20.302 (1997).
A written communication from a claimant or his or her
representative expressing dissatisfaction or disagreement
with an adjudicative determination by the agency of original
jurisdiction and a desire to contest the result will
constitute a NOD. While special wording is not required, the
NOD must be in terms which can reasonably be construed as
disagreement with that determination and a desire for
appellate review. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201.
In this case, the Board held in the prior decision that a
proper NOD had been filed.
A substantive appeal consists of a properly completed VA Form
9, “Appeal to Board of Veterans Appeals,” or correspondence
containing the necessary information. 38 C.F.R. § 20.202.
Proper completion and filing of a substantive appeal are the
last actions the appellant needs to take to perfect an
appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202.
A Substantive Appeal may be filed by the veteran personally,
or by his or her representative if a proper power of attorney
or declaration of representation, as applicable, is on record
or accompanies such notice of disagreement or substantive
appeal. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.301 (1997).
Since there is no communication of record from the veteran in
the interim since notification of the action taken, the Board
has considered whether either of the statements submitted by
his representative in July or August 1998 might be considered
as a substantive appeal, in order to satisfy the
jurisdictional requirements. The Board finds that they can
not.
Accordingly, under the now controlling case law, the Board
does not have jurisdiction to consider an appeal of the issue
of entitlement to increased (compensable) disability
evaluation for tension headaches, because there was not a
perfected appeal of that issue.
As “jurisdiction does indeed matter", McGinnis v. Brown, 4
Vet. App. 239, 244 (1993); and as “[a] jurisdictional matter
may be raised at any stage” of the proceeding, AB v. Brown,
6 Vet. App. 35, 37 (1995) quoting Phillips v. General Servs.
Admin., 924 F.2d 1577, 1579 (Fed.Cir. 1991), the Board finds
that this case must be dismissed for lack of jurisdiction at
this time.
In order to pursue a claim for an increase in the evaluation
for his tension headaches, the veteran will need to submit a
timely substantive appeal.
For clarification purposes, however, the Board would
reiterate that to be timely, a Substantive Appeal must be
filed with the RO within 60 days from the date the RO mailed
a statement of the case to the appellant, or within the
remainder of the one year period from the date of mailing of
the notice of the decision denying the benefit sought,
whichever period ends later.
However, this in turn presents a puzzlement, since it remains
unclear the exact date on which the veteran was informed of
the decision granting service connection and more
importantly, assigned a noncompensable rating. Logically, it
could have been the date of the rating decision that so
effectuated such action, i.e., September 19, 1997. This
would have been the earliest possible date of his
notification. However, there is no copy of such a letter in
the file, notwithstanding a subsequent letter by the RO in
November 1997 referred to his having been previously so
notified.
Alternatively, it could also have been the date of the letter
notifying him of further information, dated November 12,
1997. This would have been the latest possible date.
Regardless of whether his notification date was in September
at the earliest or November at the latest, since then there
has been no response from the veteran in any manner.
Similarly, neither written presentation by the veteran's
representative in July or August 1998, are such as to be
construed in lieu thereof under prevailing regulations.
Thus, regardless of whether the September 29th, 1997 or
November 12, 1997 notification date is accurate, the one year
which is permissible for the filing of a Substantive Appeal,
has not yet transpired.
The Board regrets any confusion and delay that the recent
changes in the case law may have caused. It should be
understood by all parties, however, that Congress has made
the United States Court of Veterans Appeals the national
statutory court of review of decisions on veterans’ benefits
by the Secretary and the Department of Veterans Affairs. In
so doing, it has vested a superior power for the
interpretation of the congressional mandate by authorizing
and directing the Court to “decide all relevant questions of
law, interpret constitutional, statutory, and regulatory
provisions, and determine the meaning or applicability of the
terms of an action of the Secretary.” 38 U.S.C.A. §
7261(a)(1) (West 1991).
VA has limited authority to appeal a decision of the Court to
the United States Court of Appeals for the Federal Circuit
and to the Supreme Court (38 U.S.C.A. § 7292 (West 1991)) but
Congress did not give VA the “power or authority to
disagree, respectfully or otherwise, with decisions of (the)
court.” Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d
Cir. 1979).
Hence, the Board’s April 1998 remand action was necessitated
by the law of the land which was then in effect, just as this
dismissal is dictated by the law in effect in 1998. See
Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991)
A decision of the Court, unless or until overturned by the
Court en banc, the United States Court of Appeals for the
Federal Circuit, or the Supreme Court, is a decision of the
Court on the date it is issued; any rulings, interpretations,
or conclusions of law contained in such a decision are
authoritative and binding as of the date the decision is
issued and are to be considered and, when applicable, are to
be followed by VA agencies of original jurisdiction, the
Board of Veterans’ Appeals, and the Secretary in adjudicating
and resolving claims.
ORDER
The claim is dismissed for lack of appellate jurisdiction.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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